**Exhibit 10.13**

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**AVOCENT CORPORATION**

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**INDEMNIFICATION AGREEMENT**

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This Indemnification Agreement (“**Agreement**”) ismade as of                       ,2008 by and between Avocent Corporation, a Delaware corporation (the “**Company**”), and [*insert name of indemnitee*](“**Indemnitee**”).

 

WHEREAS, Indemnitee’s service to the Company substantially benefits theCompany;

 

WHEREAS, competent and experienced individuals are reluctant to serveas directors or officers of corporations or in certain other capacities unlessthey are provided with adequate protection through insurance or indemnificationagainst the risks of claims and actions against them arising out of suchservice;

 

WHEREAS, Indemnitee does not regard the protection currently providedby applicable law, the Company’s governing documents, and any insurance asadequate under the present circumstances, and Indemnitee may not be willing toserve as a director or officer without additional protection;

 

WHEREAS, in order to induce Indemnitee to continue to provide servicesto the Company, it is reasonable, prudent, and necessary for the Company tocontractually obligate itself to indemnify, and to advance expenses on behalfof, Indemnitee as permitted by applicable law; and

 

WHEREAS, this Agreement is a supplement to and in furtherance of theindemnification provided in the Company’s certificate of incorporation andbylaws, any resolutions adopted pursuant thereto, and any agreement betweenIndemnitee and the Company, and this Agreement shall not be deemed a substitutetherefor, nor shall this Agreement be deemed to limit, diminish or abrogate anyrights of Indemnitee thereunder.

 

NOW, THEREFORE, the Company and Indemnitee do hereby agree as follows:

 

# 1.             Definitions.

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## (a)           A “**Change in Control**” shall be deemed to occur upon theearliest to occur after the date of this Agreement of any of the followingevents:

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### (i)    *Acquisition of Stock by Third Party.*  Any Person (as defined below) is or becomesthe Beneficial Owner (as defined below), directly or indirectly, of securitiesof the Company representing fifteen percent (15%) or more of the combinedvoting power of the Company’s then outstanding securities;

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### (ii)   *Change inBoard Composition.*  During anyperiod of two (2) consecutive years (not including any period prior to theexecution of this Agreement), individuals who at the beginning of such periodconstitute the Company’s board of directors, and any new directors (other thana director designated by a person who has entered into an agreement with theCompany to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or1(a)(iv)) whose election by the board of directors or nomination for electionby the Company’s stockholders was approved by a vote of at least two-thirds ofthe directors then still in office who either were directors at the beginningof the period or whose election or nomination for election was 

 

 

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### previouslyso approved, cease for any reason to constitute at least a majority of themembers of the Company’s board of directors;

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### (iii)  *CorporateTransactions.*  The effectivedate of a merger or consolidation of the Company with any other entity, otherthan a merger or consolidation which would result in the voting securities ofthe Company outstanding immediately prior to such merger or consolidationcontinuing to represent (either by remaining outstanding or by being convertedinto voting securities of the surviving entity) more than 50% of the combinedvoting power of the voting securities of the surviving entity outstandingimmediately after such merger or consolidation and with the power to elect atleast a majority of the board of directors or other governing body of suchsurviving entity;

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### (iv)  *Liquidation.*  The approval by the stockholders of theCompany of a complete liquidation of the Company or an agreement for the saleor disposition by the Company of all or substantially all of the Company’sassets; and

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### (v)   *OtherEvents.*  Any other event of anature that would be required to be reported in response to Item 6(e) ofSchedule 14A of Regulation 14A (or in response to any similar item on anysimilar schedule or form) promulgated under the Securities Exchange Act of1934, as amended, whether or not the Company is then subject to such reportingrequirement.

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For purposes of this Section 1(a), the following terms shall havethe following meanings:

 

#### (1)           “**Person**” shall have the meaning as set forth inSections 13(d) and 14(d) of the Securities Exchange Act of 1934,as amended; *provided, however,* that “**Person**” shall exclude (i) the Company, (ii) anytrustee or other fiduciary holding securities under an employee benefit plan ofthe Company, and (iii) any corporation owned, directly or indirectly, bythe stockholders of the Company in substantially the same proportions as theirownership of stock of the Company.

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#### (2)           “**Beneficial Owner**” shall have the meaning given to such termin Rule 13d-3 under the Securities Exchange Act of 1934, as amended; *provided, however,* that “**BeneficialOwner**” shall exclude any Person otherwise becoming a BeneficialOwner by reason of (i) the stockholders of the Company approving a mergerof the Company with another entity or (ii) the Company’s board ofdirectors approving a sale of securities by the Company to such Person.

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## (b)           “**Corporate Status**” describes the status of a person who is orwas a director, trustee, general partner, managing member, officer, employee,agent, or fiduciary of the Company or any other Enterprise.

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## (c)           “**DGCL**” means the General Corporation Law of the State ofDelaware.

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## (d)           “**Disinterested Director**” means a director of the Company whois not and was not a party to the Proceeding in respect of whichindemnification is sought by Indemnitee.

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## (e)           “**Enterprise**” means the Company and any other corporation,partnership, limited liability company, joint venture, trust, employee benefitplan, or other enterprise of which Indemnitee is or was serving at the requestof the Company as a director, trustee, general partner, managing member,officer, employee, agent, or fiduciary.

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## (f)            “**Expenses**” include all reasonable attorneys’ fees, retainers,court costs, transcript costs, fees and costs of experts, witness fees, travelexpenses, duplicating costs, printing and binding costs, 

 

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## telephonecharges, postage, delivery service fees, and all other disbursements orexpenses of the types customarily incurred in connection with prosecuting,defending, preparing to prosecute or defend, investigating, being or preparingto be a witness in, or otherwise participating in, a Proceeding.  Expenses also include (i) Expensesincurred in connection with any appeal resulting from any Proceeding, includingwithout limitation the premium, security for, and other costs relating to anycost bond, supersedeas bond, or other appeal bond or their equivalent, and (ii) forpurposes of Section 12(d), Expenses incurred by Indemnitee in connectionwith the interpretation, enforcement, or defense of Indemnitee’s rights underthis Agreement or under any directors’ and officers’ liability insurancepolicies maintained by the Company. Expenses, however, shall not include amounts paid in settlement byIndemnitee or the amount of judgments or fines against Indemnitee.

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## (g)           “**Independent Counsel**” means a law firm, or a partner ormember of a law firm, that is experienced in matters of corporation law andneither presently is, nor in the past five years has been, retained torepresent (i) the Company or Indemnitee in any matter material to eithersuch party (other than as Independent Counsel with respect to matters concerningIndemnitee under this Agreement, or other indemnitees under similarindemnification agreements), or (ii) any other party to the Proceedinggiving rise to a claim for indemnification hereunder.  Notwithstanding the foregoing, the term “**Independent Counsel**” shall not include any person who, underthe applicable standards of professional conduct then prevailing, would have aconflict of interest in representing either the Company or Indemnitee in anaction to determine Indemnitee’s rights under this Agreement.

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## (h)           “**Proceeding**” means any threatened, pending, or completedaction, suit, arbitration, mediation, alternate dispute resolution mechanism,investigation, inquiry, administrative hearing, or proceeding, whether broughtin the right of the Company or otherwise and whether of a civil, criminal,administrative, or investigative nature, including any appeal therefrom, inwhich Indemnitee was, is or will be involved as a party, a potential party, anon-party witness, or otherwise by reason of (i) the fact that Indemniteeis or was a director or officer of the Company, (ii) any action taken byIndemnitee or any action or inaction on Indemnitee’s part while acting as adirector or officer of the Company, or (iii) the fact that he or she is orwas serving at the request of the Company as a director, trustee, generalpartner, managing member, officer, employee, agent, or fiduciary of the Companyor any other Enterprise, in each case whether or not serving in such capacityat the time any liability or Expense is incurred for which indemnification oradvancement of expenses can be provided under this Agreement; except oneinitiated by an Indemnitee to enforce his or her rights under this Agreement.

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## (i)            Reference to “**other enterprises**” shall include employee benefit plans;references to “**fines**” shall include any excisetaxes assessed on a person with respect to any employee benefit plan;references to “**serving at the request of the Company**”shall include any service as a director, officer, employee, or agent of theCompany which imposes duties on, or involves services by, such director,officer, employee, or agent with respect to an employee benefit plan, itsparticipants or beneficiaries; and a person who acted in good faith and in amanner he or she reasonably believed to be in the best interests of theparticipants and beneficiaries of an employee benefit plan shall be deemed tohave acted in a manner “**not opposed to the bestinterests of the Company**” as referred to in this Agreement.

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# 2.             Indemnity in Third-PartyProceedings.  The Company shallindemnify Indemnitee in accordance with the provisions of this Section 2if Indemnitee is, or is threatened to be made, a party to or a participant inany Proceeding, other than a Proceeding by or in the right of the Company toprocure a judgment in its favor. Pursuant to this Section 2, Indemnitee shall be indemnified to thefullest extent permitted by applicable law against all Expenses, judgments,fines, and amounts paid in settlement actually and reasonably incurred byIndemnitee or on his or her behalf in connection with such Proceeding or anyclaim, issue, or matter therein, if Indemnitee acted in good faith and in amanner he or she reasonably 

 

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# believed to be in or notopposed to the best interests of the Company and, with respect to any criminalaction or proceeding, had no reasonable cause to believe that his or herconduct was unlawful.

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# 3.             Indemnity in Proceedings by orin the Right of the Company.  TheCompany shall indemnify Indemnitee in accordance with the provisions of this Section 3if Indemnitee is, or is threatened to be made, a party to or a participant inany Proceeding by or in the right of the Company to procure a judgment in itsfavor.  Pursuant to this Section 3,Indemnitee shall be indemnified to the fullest extent permitted by applicablelaw against all Expenses actually and reasonably incurred by Indemnitee or onIndemnitee’s behalf in connection with such Proceeding or any claim, issue, ormatter therein, if Indemnitee acted in good faith and in a manner he or shereasonably believed to be in or not opposed to the best interests of theCompany.  No indemnification for Expensesshall be made under this Section 3 in respect of any claim, issue, or matteras to which Indemnitee shall have been adjudged by a court of competentjurisdiction to be liable to the Company, unless and only to the extent thatthe Delaware Court of Chancery or any court in which the Proceeding was broughtshall determine upon application that, despite the adjudication of liabilitybut in view of all the circumstances of the case, Indemnitee is fairly andreasonably entitled to indemnification for such expenses as the Delaware Courtof Chancery or such other court shall deem proper.

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# 4.             Indemnification for Expenses ofa Party Who is Wholly or Partly Successful. To the extent that Indemnitee is a party to or a participant in and issuccessful (on the merits or otherwise) in defense of any Proceeding or anyclaim, issue, or matter therein, the Company shall indemnify Indemnitee againstall Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’sbehalf in connection therewith.  To theextent permitted by applicable law, if Indemnitee is not wholly successful in suchProceeding but is successful, on the merits or otherwise, in defense of one ormore but less than all claims, issues or matters in such Proceeding, theCompany shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or onIndemnitee’s behalf in connection with (a) each successfully resolvedclaim, issue, or matter and (b) any claim, issue, or matter related to anysuch successfully resolved claim, issue, or matter.  For purposes of this Section, the terminationof any claim, issue, or matter in such a Proceeding by dismissal, with orwithout prejudice, shall be deemed to be a successful result as to such claim,issue, or matter.

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# 5.             Indemnification for Expenses ofa Witness.  Notwithstanding any otherprovision of this Agreement, to the extent that Indemnitee is, by reason of hisor her Corporate Status, a witness in any Proceeding to which Indemnitee is nota party, Indemnitee shall be indemnified to the fullest extent permitted byapplicable law against all Expenses actually and reasonably incurred byIndemnitee or on Indemnitee’s behalf in connection therewith.

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# 6.             AdditionalIndemnification.

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## (a)           Notwithstanding anylimitation in Sections 2, 3 or 4, the Company shall indemnify Indemniteeto the fullest extent permitted by applicable law if Indemnitee is, or isthreatened to be made, a party to or a participant in any Proceeding (includinga Proceeding by or in the right of the Company to procure a judgment in itsfavor) against all Expenses, judgments, fines, and amounts paid in settlementactually and reasonably incurred by Indemnitee or on his or her behalf inconnection with the Proceeding or any claim, issue, or matter therein.

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## (b)           For purposes of Section 6(a),the meaning of the phrase “**to the fullest extent permittedby applicable law**” shall include, but not be limited to:

 

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### (i)    thefullest extent permitted by the provision of the DGCL that authorizes orcontemplates additional indemnification by agreement, or the correspondingprovision of any amendment to or replacement of the DGCL; and

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### (ii)   thefullest extent authorized or permitted by any amendments to or replacements ofthe DGCL adopted after the date of this Agreement that increase the extent towhich a corporation may indemnify its officers and directors.

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# 7.             Exclusions.  Notwithstanding any provision in thisAgreement, the Company shall not be obligated under this Agreement to make anyindemnity in connection with any Proceeding (or any part of any Proceeding):

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## (a)           for which paymenthas actually been made to or on behalf of Indemnitee under any statute,insurance policy, indemnity provision, vote or otherwise, except with respectto any excess beyond the amount paid;

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## (b)           for an accounting ordisgorgement of profits pursuant to Section 16(b) of the SecuritiesExchange Act of 1934, as amended, or similar provisions of federal, state, orlocal statutory law or common law, if Indemnitee is held liable therefor(including pursuant to any settlement arrangements);

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## (c)           for anyreimbursement of the Company by Indemnitee of any bonus or otherincentive-based or equity-based compensation or of any profits realized byIndemnitee from the sale of securities of the Company, as required in each caseunder the Securities Exchange Act of 1934, as amended (including any suchreimbursements that arise from an accounting restatement of the Companypursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “**Sarbanes-Oxley Act**”), or the payment to the Company ofprofits arising from the purchase and sale by Indemnitee of securities inviolation of Section 306 of the Sarbanes-Oxley Act), if Indemnitee is heldliable therefor (including pursuant to any settlement arrangements);

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## (d)           initiated byIndemnitee, including any Proceeding (or any part of any Proceeding) initiatedby Indemnitee against the Company or its directors, officers, employees, agentsor other indemnitees, unless (i) the Company’s board of directorsauthorized the Proceeding (or the relevant part of the Proceeding) prior to itsinitiation, (ii) the Company provides the indemnification, in its solediscretion, pursuant to the powers vested in the Company under applicable law, (iii) otherwiseauthorized in Section 12(d) or (iv) otherwise required byapplicable law; or

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## (e)           if prohibited byapplicable law.

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# 8.             Advances of Expenses.  The Company shall advance, to the extent notprohibited by law, the Expenses incurred by Indemnitee in connection with anyProceeding, and such advancement shall be made as soon as reasonablypracticable, but in any event no later than thirty (30) days, after the receiptby the Company of a written statement or statements requesting such advancesfrom time to time (which shall include invoices received by Indemnitee inconnection with such Expenses but, in the case of invoices in connection withlegal services, any references to legal work performed or to expenditure madethat would cause Indemnitee to waive any privilege accorded by applicable lawshall not be included with the invoice).  Advances shall be unsecured andinterest free and made without regard to Indemnitee’s ability to repay suchadvances.  Indemnitee hereby undertakesto repay any advance to the extent that it is ultimately determined thatIndemnitee is not entitled to be indemnified by the Company.  This Section 8 shall not apply to anyclaim made by Indemnitee for which indemnity is excluded pursuant to thisAgreement.

 

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# 9.             Procedure forNotification and Defense of Claim.

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## (a)           Indemnitee shallnotify the Company in writing of any matter with respect to which Indemniteeintends to seek indemnification or advancement of Expenses as soon asreasonably practicable following the receipt by Indemnitee of written noticethereof.  The written notification to theCompany shall include a description of the nature of the Proceeding and thefacts underlying the Proceeding.  Thefailure by Indemnitee to notify the Company will not relieve the Company fromany liability which it may have to Indemnitee hereunder or otherwise than underthis Agreement, and any delay in so notifying the Company shall not constitutea waiver by Indemnitee of any rights, except to the extent that such failure ordelay materially prejudices the Company.

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## (b)           If, at the time ofthe receipt of a notice of a Proceeding pursuant to the terms hereof, theCompany has director and officer liability insurance in effect, the Companyshall give prompt notice of the commencement of the Proceeding to the insurersin accordance with the procedures set forth in the respective policies.  The Company shall thereafter take allreasonably necessary or desirable action to cause such insurers to pay, onbehalf of Indemnitee, all amounts payable as a result of such Proceeding inaccordance with the terms of such policies.

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## (c)           In the event theCompany may be obligated to make any indemnity in connection with a Proceeding,the Company shall be entitled to assume thedefense of such Proceeding with counsel approved byIndemnitee, which approval shall not be unreasonably withheld, upon thedelivery to Indemnitee of written notice of its election to do so.  After delivery of such notice, approval ofsuch counsel by Indemnitee and the retention of such counsel by the Company,the Company will not be liable to Indemnitee for any fees or expenses ofcounsel subsequently incurred by Indemnitee with respect to the sameProceeding.  Notwithstanding the Company’s assumption of the defense ofany such Proceeding, the Company shall be obligated to pay the fees andexpenses of Indemnitee’s counsel to the extent (i) the employment ofcounsel by Indemnitee is authorized by the Company, (ii) counsel for theCompany or Indemnitee shall have reasonably concluded that there is a conflictof interest between the Company and Indemnitee in the conduct of any suchdefense such that Indemnitee needs to be separately represented, (iii) theCompany is not financially or legally able to perform its indemnificationobligations or (iv) the Company shall not have retained, or shall notcontinue to retain, such counsel to defend such Proceeding.  The Company shall have the right to conductsuch defense as it sees fit in its sole discretion.  Regardless of any provision in thisAgreement, Indemnitee shall have the right to employ Indemnitee’s counsel inany Proceeding at Indemnitee’s personal expense.  The Company shall not be entitled, withoutthe consent of Indemnitee, to assume the defense of any claim brought by or inthe right of the Company.

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## (d)           Indemnitee shall givethe Company such information and cooperation in connection with the Proceedingas may be reasonably appropriate.

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## (e)           The Company shallnot be liable to indemnify Indemnitee for any settlement of any Proceeding (orany part thereof) without the Company’s prior written consent, which shall notbe unreasonably withheld.

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## (f)            The Company shallhave the right to settle any Proceeding (or any part thereof) without theconsent of Indemnitee.

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# 10.           Procedure uponApplication for Indemnification.

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## (a)           To obtain indemnification,Indemnitee shall submit to the Company a written request, including therein ortherewith such documentation and information as is reasonably available toIndemnitee 

 

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## andas is reasonably necessary to determine whether and to what extent Indemniteeis entitled to indemnification following the final disposition of suchProceeding.  The Company shall, as soonas reasonably practicable after receipt of such a request for indemnification,advise the board of directors that Indemnitee has requested indemnification.

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## (b)           Upon written requestby Indemnitee for indemnification pursuantto Section 10(a), a determination, if required byapplicable law, with respect to Indemnitee’s entitlement thereto shall be madein the specific case (i) if a Change in Control shall have occurred, byIndependent Counsel in a written opinion to the Company’s board of directors, acopy of which shall be delivered to Indemnitee or (ii) if a Change inControl shall not have occurred, (A) by a majority vote of theDisinterested Directors, even though less than a quorum of the Company’s boardof directors, (B) by a committee of Disinterested Directors designated bya majority vote of the Disinterested Directors, even though less than a quorumof the Company’s board of directors, (C) if there are no suchDisinterested Directors or, if such Disinterested Directors so direct, byIndependent Counsel in a written opinion to the Company’s board of directors, acopy of which shall be delivered to Indemnitee or (D) if so directed bythe Company’s board of directors, by the stockholders of the Company.  If it is so determined that Indemnitee isentitled to indemnification, payment to Indemnitee shall be made within thirty (30) days after such determination.  Indemnitee shall cooperate with the person,persons, or entity making such determination with respect to Indemnitee’sentitlement to indemnification, including providing to such person, persons, orentity upon reasonable advance request any documentation or information whichis not privileged or otherwise protected from disclosure and which isreasonably available to Indemnitee and reasonably necessary to suchdetermination.  Any costs or expenses(including attorneys’ fees and disbursements) reasonably incurred by Indemniteein so cooperating with the person, persons, or entity making such determinationshall be borne by the Company, to the extent permitted by applicable law.

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## (c)           In the event thedetermination of entitlement to indemnification is to be made by IndependentCounsel pursuant to Section 10(b), the Independent Counsel shall beselected as provided in this Section 10(c).  If a Change in Control shall not haveoccurred, the Independent Counsel shall be selected by the Company’s board ofdirectors, and the Company shall give written notice to Indemnitee advising himor her of the identity of the Independent Counsel so selected.  If a Change in Control shall have occurred,the Independent Counsel shall be selected by Indemnitee (unless Indemniteeshall request that such selection be made by the Company’s board of directors,in which event the preceding sentence shall apply), and Indemnitee shall givewritten notice to the Company advising it of the identity of the IndependentCounsel so selected.  In either event,Indemnitee or the Company, as the case may be, may, within ten (10) daysafter such written notice of selection shall have been given, deliver to theCompany or to Indemnitee, as the case may be, a written objection to suchselection; *provided*, *however*,that such objection may be asserted only on the ground that the IndependentCounsel so selected does not meet the requirements of “Independent Counsel” asdefined in Section 1 of this Agreement, and the objection shall set forthwith particularity the factual basis of such assertion.  Absent a proper and timely objection, theperson so selected shall act as Independent Counsel.  If such written objection is so made andsubstantiated, the Independent Counsel so selected may not serve as IndependentCounsel unless and until such objection is withdrawn or a court has determinedthat such objection is without merit. If, within twenty (20) days after the later of (i) submission byIndemnitee of a written request for indemnification pursuant to Section 10(a) hereofand (ii) the final disposition of the Proceeding, the parties have notagreed upon an Independent Counsel, either the Company or Indemnitee maypetition a court of competent jurisdiction for resolution of any objection whichshall have been made by the Company or Indemnitee to the other’s selection ofIndependent Counsel and for the appointment as Independent Counsel of a personselected by the court or by such other person as the court shall designate, andthe person with respect to whom all objections are so resolved or the person soappointed shall act as Independent Counsel under Section 10(b) hereof.  Upon the due commencement of any judicialproceeding or arbitration pursuant to Section 12(a) of thisAgreement, the Independent Counsel shall be 

 

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## dischargedand relieved of any further responsibility in such capacity (subject to theapplicable standards of professional conduct then prevailing).

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## (d)           The Company agrees topay the reasonable fees and expenses of any Independent Counsel and to fullyindemnify such counsel against any and all Expenses, claims, liabilities anddamages arising out of or relating to this Agreement or its engagement pursuanthereto.

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# 11.           Presumptions andEffect of Certain Proceedings.

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## (a)           In making adetermination with respect to entitlement to indemnification hereunder, theperson, persons, or entity making such determination shall, to the fullestextent not prohibited by law, presume that Indemnitee is entitled toindemnification under this Agreement if Indemnitee has submitted a request forindemnification in accordance with Section 10(a) of this Agreement,and the Company shall, to the fullest extent not prohibited by law, have theburden of proof to overcome that presumption in connection with the making bysuch person, persons or entity of any determination contrary to thatpresumption.

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## (b)           The termination ofany Proceeding or of any claim, issue, or matter therein, by judgment, order,settlement or conviction, or upon a plea of *nolo**contendere* or its equivalent, shall not (except as otherwiseexpressly provided in this Agreement) of itself adversely affect the right ofIndemnitee to indemnification or create a presumption that Indemnitee did notact in good faith and in a manner which he or she reasonably believed to be inor not opposed to the best interests of the Company or, with respect to anycriminal Proceeding, that Indemnitee had reasonable cause to believe that hisor her conduct was unlawful.

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## (c)           For purposes of anydetermination of good faith, Indemnitee shall be deemed to have acted in goodfaith to the extent Indemnitee relied in good faith on (i) the records orbooks of account of the Enterprise, including financial statements, (ii) informationsupplied to Indemnitee by the officers of the Enterprise in the course of theirduties, (iii) the advice of legal counsel for the Enterprise or its boardof directors or counsel selected by any committee of the board of directors or (iv) informationor records given or reports made to the Enterprise by an independent certifiedpublic accountant, an appraiser, investment banker or other expert selectedwith reasonable care by the Enterprise or its board of directors or anycommittee of the board of directors.  Theprovisions of this Section 11(c) shall not be deemed to be exclusiveor to limit in any way the other circumstances in which Indemnitee may bedeemed to have met the applicable standard of conduct set forth in thisAgreement.

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## (d)           Neither theknowledge, actions nor failure to act of any other director, officer, agent oremployee of the Enterprise shall be imputed to Indemnitee for purposes ofdetermining the right to indemnification under this Agreement.

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# 12.           Remedies ofIndemnitee.

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## (a)           Subject to Section 12(e),in the event that (i) a determination is made pursuant to Section 10of this Agreement that Indemnitee is not entitled to indemnification under thisAgreement, (ii) advancement of Expenses is not timely madepursuant to Section 8 or 12(d) of thisAgreement, (iii) no determination of entitlement to indemnification shallhave been made pursuant to Section 10 of this Agreement within ninety (90)days after receipt by the Company of the request for indemnification, (iv) paymentof indemnification pursuant to this Agreement is not made (A) withinthirty (30) days after a determination has been made that Indemnitee isentitled to indemnification or (B) with respect to indemnificationpursuant to Sections 4, 5 and 12(d) of this Agreement, within thirty(30) days after receipt by the Company of a written request therefor, or (v) theCompany or any other person or entity takes or threatens to take any action todeclare this Agreement void or unenforceable, or institutes any litigation orother action 

 

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## orproceeding designed to deny, or to recover from, Indemniteethe benefits provided or intended to be provided to Indemnitee hereunder,Indemnitee shall be entitled to an adjudication by a court of his or herentitlement to such indemnification or advancement of Expenses.  Alternatively, Indemnitee, at his or heroption, may seek an award in arbitration to be conducted by a single arbitratorpursuant to the Commercial Arbitration Rules of the American ArbitrationAssociation.  TheCompany shall not oppose Indemnitee’s right to seek any such adjudication oraward in arbitration in accordance with this Agreement.

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## (b)           Neither (i) thefailure of the Company, its board of directors, any committee or subgroup ofthe board of directors, Independent Counsel, or stockholders to have made adetermination that indemnification is proper in the circumstances becauseIndemnitee has met the applicable standard of conduct, nor (ii) an actualdetermination by the Company, its board of directors, any committee or subgroupof the board of directors, Independent Counsel, or stockholders that Indemniteehas not met the applicable standard of conduct, shall be a defense to theaction or create a presumption that Indemnitee has or has not met theapplicable standard of conduct.  In theevent that a determination shall have been made pursuant to Section 10 ofthis Agreement that Indemnitee is not entitled to indemnification, any judicialproceeding or arbitration commenced pursuant to this Section 12 shall beconducted in all respects as a *de novo* trial,or arbitration, on the merits and Indemnitee shall not be prejudiced by reasonof that adverse determination.  In anyjudicial proceeding or arbitration commenced pursuant to this Section 12,the Company shall, to the fullest extent not prohibited by law, have the burdenof proving Indemnitee is not entitled to indemnification or advancement ofExpenses, as the case may be.

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## (c)           If a determinationshall have been made pursuant to Section 10 of this Agreement thatIndemnitee is entitled to indemnification, the Company shall be bound by suchdetermination in any judicial proceeding or arbitration commenced pursuant tothis Section 12, absent (i) a misstatement by Indemnitee of amaterial fact, or an omission of a material fact necessary to make Indemnitee’sstatements not materially misleading, in connection with the request forindemnification, or (ii) a prohibition of such indemnification underapplicable law.

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## (d)           The Company shallindemnify Indemnitee against any and all Expenses and, if requested byIndemnitee, shall (as soon as reasonably practicable, but in any event no laterthan thirty (30) days, after receipt by the Company of a written requesttherefor) advance such Expenses to Indemnitee, that are incurred by Indemniteein connection with any action for indemnification or advancement of Expensesfrom the Company under this Agreement or under any directors’ and officers’liability insurance policies maintained by the Company, to the extentIndemnitee is successful in such action and to the extent not prohibited bylaw.

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## (e)           Notwithstandinganything in this Agreement to the contrary, no determination as to entitlementto indemnification shall be required to be made prior to the final dispositionof the Proceeding.

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# 13.           Contribution.  To the fullest extent permissible underapplicable law, if the indemnification provided for in this Agreement isunavailable to Indemnitee, the Company, in lieu of indemnifying Indemnitee,shall contribute to the amount incurred by Indemnitee, whether for Expenses,judgments, fines, or amounts paid or to be paid in settlement, in connectionwith any claim relating to an indemnifiable event under this Agreement, in suchproportion as is deemed fair and reasonable in light of all of thecircumstances of such Proceeding in order to reflect (i) the relativebenefits received by the Company and Indemnitee as a result of the event(s) andtransaction(s) giving rise to such Proceeding and (ii) the relativefault of Indemnitee and the Company (and its other directors, officers,employees and agents) in connection with such event(s) and transaction(s).

 

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# 14.           Non-exclusivity.  The rights of indemnification and to receiveadvancement of Expenses as provided by this Agreement shall not be deemedexclusive of any other rights to which Indemnitee may at any time be entitledunder applicable law, the Company’s certificate of incorporation or bylaws, anyagreement, a vote of stockholders or a resolution of directors, orotherwise.  No amendment, alteration, orrepeal of this Agreement shall adversely affect any right of Indemnitee underthis Agreement in respect of any action taken or omitted by such Indemnitee inhis or her Corporate Status prior to such amendment, alteration or repeal.  To the extent that a change in Delaware law,whether by statute or judicial decision, permits greater indemnification oradvancement of Expenses than would be afforded currently under the Company’scertificate of incorporation and bylaws and this Agreement, it is the intent ofthe parties hereto that Indemnitee shall enjoy by this Agreement the greaterbenefits so afforded by such change, subject to the restrictions expressly setforth herein or therein.  Except asexpressly set forth herein, no right or remedy herein conferred is intended tobe exclusive of any other right or remedy, and every other right and remedyshall be cumulative and in addition to every other right and remedy givenhereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right orremedy hereunder, or otherwise, shall not prevent the concurrent assertion oremployment of any other right or remedy.

#  

# 15.           No Duplication of Payments.  The Company shall not be liable under thisAgreement to make any payment of amounts otherwise indemnifiable hereunder (orfor which advancement is provided hereunder) if and to the extent thatIndemnitee has otherwise actually received payment for such amounts under anyinsurance policy, contract, agreement or otherwise.

#  

# 16.           Insurance.  To the extent that the Company maintains aninsurance policy or policies providing liability insurance for directors,trustees, general partners, managing members, officers, employees, agents, orfiduciaries of the Company or any other Enterprise, Indemnitee shall be coveredby such policy or policies to the same extent as the most favorably-insuredpersons under such policy or policies in a comparable position.

#  

# 17.           Subrogation.  In the event of any payment under thisAgreement, the Company shall be subrogated to the extent of such payment to allof the rights of recovery of Indemnitee, who shall execute all papers requiredand take all action necessary to secure such rights, including execution ofsuch documents as are necessary to enable the Company to bring suit to enforcesuch rights.

#  

# 18.           Services to the Company.  Indemnitee agrees to serve as a director orofficer of the Company or, at the request of the Company, as a director,trustee, general partner, managing member, officer, employee, agent, orfiduciary of another Enterprise, for so long as Indemnitee is duly elected orappointed or until Indemnitee tenders his or her resignation.  Indemnitee may at any time and for any reasonresign from such position (subject to any other contractual obligation or anyobligation imposed by operation of law), in which event the Company shall haveno obligation under this Agreement to continue Indemnitee in suchposition.  This Agreement shall not bedeemed an employment contract between the Company (or any of its subsidiariesor any Enterprise) and Indemnitee. Indemnitee specifically acknowledges that any employment with theCompany (or any of its subsidiaries or any Enterprise) is at will, andIndemnitee may be discharged at any time for any reason, with or without cause,with or without notice, except as may be otherwise expressly provided in anyexecuted, written employment contract between Indemnitee and the Company (orany of its subsidiaries or any Enterprise), any existing formal severancepolicies adopted by the Company’s board of directors or, with respect toservice as a director or officer of the Company, the Company’s certificate ofincorporation or bylaws or the DGCL.

#  

# 19.           Duration.  This Agreement shall continue until andterminate upon the later of (a) ten (10) years after the date thatIndemnitee shall have ceased to serve as a director or officer of the Companyor as a director, trustee, general partner, managing member, officer, employee,agent, or fiduciary of any other 

 

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# Enterprise, as applicable;or (b) one (1) year after the final termination of any Proceeding,including any appeal, then pending in respect of which Indemnitee is grantedrights of indemnification or advancement of Expenses hereunder and of anyproceeding commenced by Indemnitee pursuant to Section 12 of thisAgreement relating thereto.

#  

# 20.           Successors.  This Agreement shall be binding upon theCompany and its successors and assigns, including any direct or indirectsuccessor by purchase, merger, consolidation or otherwise to all orsubstantially all of the business or assets of the Company, and shall inure tothe benefit of Indemnitee and Indemnitee’s heirs, executors andadministrators.  The Company shallrequire and cause any successor (whether direct or indirect by purchase,merger, consolidation or otherwise) to all or substantially all of the businessor assets of the Company, by written agreement, expressly to assume and agreeto perform this Agreement in the same manner and to the same extent that theCompany would be required to perform if no such succession had taken place.

#  

# 21.           Severability.  If any provision or provisions of thisAgreement shall be held to be invalid, illegal, or unenforceable for any reasonwhatsoever: (a) the validity, legality, and enforceability of theremaining provisions of this Agreement (including without limitation, eachportion of any Section of this Agreement containing any such provisionheld to be invalid, illegal or unenforceable, that is not itself invalid,illegal or unenforceable) shall not in any way be affected or impaired therebyand shall remain enforceable to the fullest extent permitted by law; (b) suchprovision or provisions shall be deemed reformed to the extent necessary toconform to applicable law and to give the maximum effect to the intent of theparties hereto; and (c) to the fullest extent possible, the provisions ofthis Agreement (including, without limitation, each portion of any Section ofthis Agreement containing any such provision held to be invalid, illegal orunenforceable, that is not itself invalid, illegal or unenforceable) shall beconstrued so as to give effect to the intent manifested thereby.

#  

# 22.           Enforcement.  The Company expressly confirms and agreesthat it has entered into this Agreement and assumed the obligations imposed onit hereby in order to induce Indemnitee to serve as a director or officer ofthe Company, and the Company acknowledges that Indemnitee is relying upon thisAgreement in serving as a director or officer of the Company.

#  

# 23.           Entire Agreement.  This Agreement constitutes the entireagreement between the parties hereto with respect to the subject matter hereofand supersedes all prior agreements and understandings, oral, written, andimplied, between the parties hereto with respect to the subject matter hereof; *provided*, *however*, thatthis Agreement is a supplement to and in furtherance of the Company’scertificate of incorporation and bylaws and applicable law.

#  

# 24.           Modification and Waiver.  No supplement, modification, or amendment tothis Agreement shall be binding unless executed in writing by the partieshereto.  No waiver of any of theprovisions of this Agreement shall constitute or be deemed a waiver of anyother provision of this Agreement nor shall any waiver constitute a continuingwaiver.

#  

# 25.           Notices.  All notices, requests, demands, and othercommunications under this Agreement shall be in writing and shall be deemed tohave been duly given if (a) delivered by hand and receipted for by theparty to whom said notice or other communication shall have been directed, (b) mailedby certified or registered mail with postage prepaid, on the third business dayafter the date on which it is so mailed, or (c) mailed by reputableovernight courier and receipted for by the party to whom said notice or othercommunication shall have been directed:

 

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## (a)           If to Indemnitee, atsuch address as indicated on the signature page of this Agreement, or suchother address as Indemnitee shall provide to the Company.

##  

| (b)    |   | If  to the Company to:                                                                    | * * | *with a copy to*           |
|--------|--------|-------------------------------------------------------------------------------------------|----------|----------------------------|
|   |   |                                                                                      | * * | * *                   |
|   |   | Avocent Corporation                                                                       |     | Avocent Corporation        |
|   |   | 4991 Corporate Drive                                                                      |     | 9911 Willows Road          |
|   |   | Huntsville, Alabama 35805                                                                 |     | Redmond, Washington 98052  |
|   |   | Attention: Chief Executive Officer                                                        |     | Attention: General Counsel |
|   |   |                                                                                      |     |                       |
|   |   | or to any other current  address as may have been furnished to Indemnitee by the Company. |

 

# 26.           Applicable Law and Consent toJurisdiction.  This Agreement and thelegal relations among the parties shall be governed by, and construed andenforced in accordance with, the laws of the State of Delaware, without regardto its conflict of laws rules.  Exceptwith respect to any arbitration commenced by Indemnitee pursuant to Section 12(a) ofthis Agreement, the Company and Indemnitee hereby irrevocably andunconditionally (i) agree that any action or proceeding arising out of orin connection with this Agreement shall be brought only in the Delaware Courtof Chancery, and not in any other state or federal court in the United Statesof America or any court in any other country, (ii) consent to submit tothe exclusive jurisdiction of the Delaware Court of Chancery for purposes ofany action or proceeding arising out of or in connection with this Agreement, (iii) appoint,to the extent such party is not otherwise subject to service of process in theState of Delaware, National Registered Agents, Inc., 160 Greentree Drive, Suite 101,Dover, DE 19904, as its agent in the State of Delaware as such party’s agentfor acceptance of legal process in connection with any such action orproceeding against such party with the same legal force and validity as ifserved upon such party personally within the State of Delaware, (iv) waiveany objection to the laying of venue of any such action or proceeding in theDelaware Court of Chancery, and (v) waive, and agree not to plead or tomake, any claim that any such action or proceeding brought in the DelawareCourt of Chancery has been brought in an improper or inconvenient forum.

#  

# 27.           Counterparts.  This Agreement may be executed in one or morecounterparts, each of which shall for all purposes be deemed to be an originalbut all of which together shall constitute one and the same Agreement.  Only one such counterpart signed by the partyagainst whom enforceability is sought needs to be produced to evidence theexistence of this Agreement.

#  

# 28.           Captions.  The headings of the paragraphs of thisAgreement are inserted for convenience only and shall not be deemed toconstitute part of this Agreement or to affect the construction thereof.

#  

(*signature page follows*)

 

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IN WITNESS WHEREOF, the parties have caused this Agreement to be signedas of the day and year first above written.

 
|   |   | **AVOCENT CORPORATION**         |
|--------|--------|---------------------------------|
|   |   |                            |
|   |   |                            |
|   |   | (*Signature*)                   |
|   |   |                            |
|   |   |                            |
|   |   | (*Print name*)                  |
|   |   |                            |
|   |   |                            |
|   |   | (*Title*)                       |
|   |   |                            |
|   |   |                            |
|   |   | **[*INSERT  INDEMNITEE NAME*]** |
|   |   |                            |
|   |   |                            |
|   |   | (*Signature*)                   |
|   |   |                            |
|   |   |                            |
|   |   | (*Print name*)                  |
|   |   |                            |
|   |   |                            |
|   |   | (*Street  address*)             |
|   |   |                            |
|   |   |                            |
|   |   | (*City,  State and ZIP*)        |

 

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